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UPDATE: DISCOVERY AND ADMISSIBILITY OF ELECTRONIC EVIDENCE
© 2002 National Legal Research Group, Inc.
I. White v. White
The new decision is White v. White, 344 N.J. Super. 211, 781 A.2d 85 (Ch. Div. 2001). The wife in White sought to use certain emails retrieved off of the family computer as evidence in a custody case. The husband argued that admission of the documents violated New Jersey's state wiretap act, plus an alleged common-law right of privacy.
The wife obtained the emails from the husband's account on America Online ("AOL"). AOL's software automatically saved all of the email received by the husband's account in a single file stored on the family computer, known as a Personal Filing Cabinet ("PFC"). The husband was unaware that this automatic saving of email was occurring. Unless the user affirmatively elects to protect the PFC with a password, it can be accessed by anyone using the computer. Since the husband did not even know of the PFC's existence, he did not elect password protection. The court had no knowledge of the content of the emails at the time the case was decided.
Wiretap Statute
The court began by holding, in accordance with the majority rule nationwide, that the state wiretap act applied interspousally. It then proceeded to consider whether the act had been violated. The language of the act, which is identical to the language of a similar federal statute, provided that a violation occurred only upon authorized access to an electronic communication stored "incidental to the electronic transmission thereof." N.J. Stat. Ann. 2A:156A-1(q). The husband's emails were not stored as part of the process of transmission; they were stored automatically by his computer, after transmission was complete. Had he known the PFC existed, he could have elected not to store his email without altering in any way the process by which his email was sent and received. "[T]he Act was not meant to extend to e-mail retrieved by the recipient and then stored." 781 A.2d at 90.
The court also noted that the emails were not "intercepted" as that term is used in N.J.S.A. 2A:156A-3(a). An interception can occur only during the transmission process. If the transmission is received and stored, and the stored copy is accessed, there is no "interception." Accord Steve Jackson Games, Inc. v. United States Department of Justice, 36 F.3d 457 (5th Cir. 1994). A similar rule is well known in football. When a defensive player catches a forward pass in flight, there is an interception, but when a defensive player takes away a pass which the receiver has already caught, there is a fumble.
Finally, the court also held that any accessing of the husband's email by the wife was not "without authorization," as required by N.J. Stat. Ann. 2A:156A-27(a). The computer which stored the husband's PFC was clearly accessible to both parties:
The family computer and entertainment center are located in the sun room. The defendant [wife] and the children often use this room to utilize the computer, watch television, and adjust the stereo volume.
White, 781 A.2d at 87. The court accordingly held:
It has been held that "without authorization" means using a computer from which one has been prohibited, or using another's password or code without permission. Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F. Supp. 2d 817 (E.D. Mich. 2000). Although she did not often use the family computer, defendant [wife] had authority to do so. Additionally, defendant did not use plaintiff's password or code without authorization. Rather, she accessed the information in question by roaming in and out of different directories on the hard drive. As stated in Sherman, where a party "consents to another's access to its computer network, it cannot claim that such access was unauthorized." Id. at 821.
Id. at 90-91. Reading these two passages together, it appears that the wife had unquestioned access to the room in which the computer was stored. She also had access to the computer, although she did not use it often. She did not, obviously, have any specific permission to access the husband's PFC. Indeed, the court does not mention that she had any permission to access the husband's AOL account generally.
The court clearly held that the wife's general authority to access the computer gave her a prima facie right to access any information stored on the computer. The court clearly suggested that the husband could restrict her rights by protecting specific files with a password. Whether he could do so by lesser means, such as simply telling the wife she was not permitted to access certain information, was not considered. But clearly, the husband had to take positive action to deny the wife lawful access to any information stored upon a computer which she was generally permitted to use.
While the court stated that the wife could not rightfully access information which the husband protected with a password, it is worth stressing how narrowly the court viewed this exception. AOL users can send and retrieve email only when logged on to AOL, and all AOL accounts are password-protected. While the husband's PFC was not password-protected, all of the email received by the husband was password-protected as originally received, before the automatic copying to the PFC took place. There is no suggestion in the opinion that the wife knew the husband's AOL password or was authorized to access his account. Thus, while the emails stored in the PFC were not password-protected, they had clearly been password-protected at some point in the past.
The court's apparent response to the fact that the emails were once password-protected was to find that the husband voluntarily chose not to protect his PFC with a password. If a computer user voluntarily copies password-protected information into an unprotected format, the password protection is clearly waived. But the court expressly found that the copying was not voluntary. Id. at 88 ("[H]e did not realize he was doing so"). If the husband did not even know that he had a PFC, he could not possibly have made any voluntary decision regarding password protection. In short, the emails at issue were originally password-protected, and they were available in unprotected format only because AOL's software automatically saved them to the husband's PFC, without the husband's knowledge. This is not password protection, but it is substantially close to it.
The court did not expressly hold that the husband was charged with imputed knowledge that a PFC existed, but that may be the best explanation of its decision. The court quoted testimony from the wife's expert stating that AOL's official help function clearly informs the user how the PFC operates. It is not unreasonable to charge the user of software with knowledge of how the software works, provided that the information is clearly available by means of help functions or documentation.
It can also be noted that the wife's expert testified that email is saved to an AOL PFC only if a specific option is affirmatively selected. That option had to have been selected on the computer at issue, as the emails were actually saved. But the court also found that the husband was unaware that his emails were being saved. This conclusion rings hollow, for someone must have affirmatively elected to save the emails in the PFC. The opinion does not list any evidence as to who made the choice, but since the husband was clearly the most-common user of the computer (and probably the most-qualified user as well), it is not unreasonable to infer that he must have made the choice. Perhaps the husband made the choice without realizing the effect of his actions, but surely a computer user can be charged with the consequences of his affirmative actions when those consequences are clearly stated in the help file or program documentation. Stated conversely, the husband cannot elect to save his email in the PFC and then claim ignorance of the consequences of that action, when a reasonable explanation of those consequences was clearly available to him.
The situation would have been very different, however, if the husband did not select the option to save email in his PFC. What if the wife set that option, without the husband's knowledge, for the purpose of monitoring his email and seeing if he had a paramour? Did the husband have a duty, every time he sent or received an email, to check and see if someone had altered the email-to-PFC option? Again, there is no suggestion in the case that the wife did this, and some reason to doubt that she had the expertise. But if the wife did make the selection that is, if the emails were saved to a disk without even imputed knowledge and consent on the part of the husband a materially different issue would have been presented.
To summarize, the emails at issue in White were not password-protected, but they were automatic copies of information which was password-protected in its original form. The court cited no evidence that the wife was given the husband's password. There, White must have reached one of the following conclusions:
1. Any authorized user of a computer can properly access any file stored thereon, regardless of password protection. The court appeared to hold otherwise. Id. at 90.
2. Any privacy right in password-protected information is lost when that information is copied to an unprotected format, even if the copying occurs without the authorized user's knowledge or consent. The effect of this rule is to impose upon a person who password-protects that file an absolute obligation to ensure that the password protection is never lost through any cause. The law is ordinarily otherwise; for instance, no one would contend that attorney-client commendations lose their privileged status if recorded on a recording device unknown to any party to the communication. Waivers of privilege or privacy rights must normally be voluntary. The court stated no reason why this principle should not apply to files stored on a computer.
3. The husband voluntarily chose to save his email in unprotected format. This option is consistent with the court's description of how AOL operates and with the fact that someone had to elect to save the emails in the PFC. It is somewhat inconsistent with the court's statement that the husband did not realize that his emails were being saved.
4. The husband was unaware that his emails were being saved in unprotected format, but only because of his own ignorance of how PFCs operate. Since the operation of PFCs is discussed with reasonable clarity in AOL's help file and documentation, the husband was charged with knowledge that his emails were being saved in unprotected format. This result is particularly appropriate if the husband selected the option to save emails in the PFC, even if he did not understand the effect of that selection. This is the construction which the author finds most likely.
Common Law
The husband in White also argued that his emails were protected by a common-law right of privacy. He relied upon Restatement (Second) of Torts 652B, which provides that invasion of privacy under certain conditions is tortious. He apparently did not cite any authority for the proposition that evidence obtained through tortious conduct is not admissible in court. Nevertheless, the court appeared to assume without deciding that tortiously obtained evidence is not admissible. As noted in our prior article, this is clearly not the law. "[T]he fact that evidence is obtained illegally is generally not a sufficient reason to exclude it from admission." Turner, supra, 13 Divorce Litigation at 168.
While the court appeared to accept the premise that evidence obtained in violation of 652B is not admissible, it held on the facts that 652B had not been violated. Under that section, liability exists only where a reasonable expectation of privacy is invaded. The court found no such reasonable expectation on the facts:
Plaintiff lived in the sun room of the marital residence; the children and defendant were in and out of this room on a regular basis. The computer was in this room and the entire family had access to it and used it. Whatever plaintiff's subjective beliefs were as to his privacy, objectively, any expectation of privacy under these conditions is not reasonable.
White, 781 A.2d at 92. The court also noted that in Del Presto v. Del Presto, 97 N.J. Super. 446, 235 A.2d 240 (App. Div. 1967), the court upheld the admission of evidence taken by the wife from an unlocked filing cabinet located in a room to which the wife had full access. The present case, the court held, was fundamentally similar:
[The wife] was searching for indicia that her husband was involved in an extramarital liaison not an uncommon occurrence in the realm of human experience. Is rummaging through files in a computer hard drive any different than rummaging through files in an unlocked filing cabinet, as in Del Presto, supra?
Not really.
White, 781 A.2d at 92.
So long as the husband's PFC did not have the status of password-protected information, the court's resolution of the common-law privacy issue makes perfect sense. Unprotected files on a computer hard drive are merely the twenty-first century equivalent of a filing cabinet. On the fundamental question of whether the information was effectively password-protected, the court's resolution of the common-law privacy issue suffers from the same problems as its resolution of the statutory privacy issue.
II. Rosenberg v. Rosenberg
The only family law decision to date which has denied access to a computer is Rosenberg v. Rosenberg, 2002 WL 15649, 2002.MN.0000022 (http://www.versuslaw.com) (Minn. Ct. App. Jan. 8, 2002). Rosenberg was a postdivorce action by the wife for an increase in maintenance. The wife was afraid that the husband was failing to report all of the income produced by his business, and she sought access to the hard drive of the business's computer. She had no real evidence that income was not being reported. The trial court denied the wife's motion for access, and the appellate court affirmed:
The [trial] court found that appellant's requests for signed authorizations and access to respondent's business's computer's hard drive were invasive and based on conjecture arising out of her attorney's limited personal observations of packages being shipped from respondent's business on a cash-on-delivery basis. . . . Nothing in the record suggests that the district court acted in an arbitrary or capricious manner in denying a portion of appellant's discovery requests.
2002.MN.0000022, 40. Rosenberg is a textbook illustration of the general rule against discovery requests which amount to fishing expeditions. To obtain access to the other party's computer, a spouse must allege something more than the speculative possibility that the computer might contain relevant evidence.
Rosenberg nevertheless raises some intriguing possibilities. Where one spouse has evidence that at least some relevant evidence is stored on the other's hard drive, it might well be possible to file a discovery request seeking complete access to the hard drive. Such a request could even be sufficient to grant access to password-protected files if there is a reasonable possibility that such files contain relevant evidence. Statutes limiting unauthorized access to computer files might be distinguishable, on grounds that a lawful discovery order surely permitted authorized access. The argument for this type of order would be particularly strong if the computer were jointly titled, or, if it were solely titled but marital property, on the ground that both spouses should have equal access to the marital estate. No reported decision has yet considered an attempt to reach password-protected information under the law of discovery.
III. Older Cases
Two older cases admit evidence taken off a computer without expressly considering a privacy-based objection.
In Hazard v. Hazard, 833 S.W.2d 911 (Tenn. Ct. App. 1991), the wife retrieved from a computer located in the marital home a copy of a letter from the husband to a former attorney. The husband argued that the letter was protected by the attorney-client privilege. The court held that the privilege had been waived:
Husband voluntarily placed this communication in the computer to which Wife had access. This effectively allowed the contents of the letter to be communicated to Wife the same as if Wife had overheard a conversation of Husband with his attorney or had received a copy of a letter from Husband to his attorney.
Id. at 914.
In Stafford v. Stafford, 161 Vt. 580, 641 A.2d 348 (1983), the wife retrieved off a family computer a document prepared by the husband, "which appeared to be an inventory and description of sexual encounters with numerous women." The wife also testified to finding a similar list in the husband's handwriting in a notebook, which had disappeared by the time of trial. The husband did not raise any privacy issue, but argued that the document had not been properly authenticated. The court disagreed:
Plaintiff's testimony of the source of the document as a file in the family computer was sufficient to identify what it was. See Veilleux v. Veilleux, 565 A.2d 95, 96 (Me. 1989) (wife's identification of envelope as coming from mother-in-law sufficient authentication even in light of latter's denial). The presence in the family computer, along with the presence of information in the notebook, provided prima facie authenticity as defendant's document.
641 A.2d at 349. Thus, any credible evidence that a particular file was created by a particular party is sufficient authentication. To the extent that the evidence is not credible, the remedy is to give the file little or no weight, and not to exclude it from evidence.
It could perhaps be argued that the wife was not in a position to know whether the husband had actually prepared the document. But the document was found on a family computer, which presumably was accessed only by family members; its content (a list of sexual encounters with women) suggested that it was probably prepared by a man; and the wife was surely competent to testify that she had seen a similar list in written form, in the husband's handwriting. It was inherently implausible that a man other than the husband would have stored a list of sexual encounters on the family computer. In light of this fact, the wife's testimony was clearly sufficient evidence to authenticate the file.
Both Hazard and Stafford are consistent with the developing rule that files on a computer hard drive are not materially different from files in a filing cabinet. See also Byrne v. Byrne, 168 Misc. 2d 321, 650 N.Y.S.2d 499 (Sup. Ct. 1996) (discussed fully in Turner, supra, 13 Divorce Litigation at 167-68). Where both spouses have access to the computer, and the file is not password-protected, any objection based on a right of privacy is unlikely to succeed.
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